State v. Osborn

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. NED OSBORN, JR., Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07-01-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0755 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-120510-002 DT The Honorable Rosa Mroz, Judge SENTENCE AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Peg Green, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Ned Osborn, Jr. s resentencing on September 18, 2009, on his conviction on one count of possession or use of dangerous drugs. Osborn s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Osborn was given the opportunity to file a supplemental brief but did not do so. court to search the record for Counsel now asks this fundamental error. After reviewing the entire record, we affirm Osborn s sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 Osborn was both Class assault, charged 3 with two dangerous counts felonies; of aggravated one count of misconduct involving weapons, a Class 4 felony; and one count of possession or use of dangerous drugs, also a Class 4 felony. jury found assault Osborn and dangerous misconduct not guilty drugs, but involving dismissed with convicted of an on guilty the was on count unable weapons prejudice). historical both of to counts possession reach a charge (which After finding prior of felony aggravated or use of on the verdict the State Osborn offense, A had the later been court sentenced him to a presumptive term of 4.5 years imprisonment on the single count of which he was convicted. 2 ¶3 204 Osborn appealed, and in State v. Osborn, 220 Ariz. 174, P.3d 432 (App. committed fundamental historical prior 2009), Osborn had misconduct charge. error felony entered we by held basing conviction into in the on a superior its finding pretrial connection court with of had an stipulation the weapons Id. at 179, ¶ 13, 204 P.3d at 437. In our opinion, we noted double jeopardy principles would not bar the State from seeking resentencing. ¶4 to prove Osborn s prior felony upon Id. at ¶ 14. On remand, the State submitted evidence of Osborn s prior felony conviction. A probation officer testified Osborn had under been on probation her supervision convicted of a felony on November 7, 2006. after being The officer also testified Osborn was on probation for that conviction on March 29, 2007, the date he committed the drug offense in this case. Additionally, the State submitted into evidence a certified copy of the minute entry from the sentencing on Osborn s prior felony conviction. ¶5 The court found the State had proved Osborn s prior felony conviction and that he was on probation at the time of the offense in this case. The court sentenced Osborn to a presumptive term of 4.5 years imprisonment with 632 days of presentence incarceration credit. 3 Osborn timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033 (2010). DISCUSSION ¶6 The court had before it sufficient evidence that Osborn had committed an historical prior felony conviction pursuant to A.R.S. § 13-604(A) (Supp. 2008), and that he was on probation at the time he committed the offense in the current case. The court received and considered a presentence report and addressed its contents during the sentencing hearing and imposed a legal sentence on the charge of which Osborn was convicted. The State s allegation of an historical prior felony conviction upon resentencing jeopardy. (citing did not violate the guarantee against double See Osborn, 220 Ariz. at 179, ¶ 14, 204 P.3d at 437 Monge v. California, 524 U.S. 721, 730 (1998)). Likewise, the court had the power to find that Osborn committed the offense while on probation, see State v. Cox, 201 Ariz. 464, 468, ¶ 16, 37 P.3d 437, 441 (App. 2002), and evidence supported that finding. CONCLUSION ¶7 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. 4 ¶8 After the filing of this decision, defense counsel s obligations pertaining to Osborn s representation in this appeal have ended. Defense counsel need do no more than inform Osborn of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Osborn has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Osborn has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/______________________________ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/_________________________ PATRICK IRVINE, Judge /s/_________________________ PHILIP HALL, Judge 5

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